The World Court also insists that unless Belgrade gave “direct orders” for particular operations or the Bosnian Serbs were “completely dependent” on Belgrade, there is no liability at all. This will be a surprise to scholars of ordinary tort law, who are accustomed to supposing that responsibility for wrongdoing can be shared.

Though the court claims to be acting on the basis of a 1986 decision in a case pitting the United States against Nicaragua, the law has moved on since then. Indeed, the court’s lackadaisical standard is at odds with United Nations Security Council Resolution 1373, passed in the wake of Sept. 11, which says that no state has a right to provide any intelligence, logistics or financing to terrorist activities.

Second, the International Court of Justice applies the demands of criminal proof to a civil case. The judges insist that even for civil liability, proof against Belgrade has to be “fully conclusive” and “incontrovertible,” with a level of certainty “beyond any doubt.” This standard is well known when the jail door will shut, but it exceeds the demands of civil liability. And in trying to meet this standard, the court declines to draw any adverse inference against Belgrade, even though the documents it turned over to the court were heavily redacted.

I usually agree with Wedgwood on this sort of thing, but I am not sure I am with her here. In general, I’m not sure the distinction between “civil liability of a state” for violation of a jus cogen norm and criminal liability should really be all that large. Nor am I sure that ordinary principles of tort law should necessarily guide us here. But Wedgwood is always interesting, so her thoughts are worth considering.

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